Audit Office worker 'unfairly dismissed' after being refused leave to care for dying relative: Fair Work Commission

The Fair Work Commission on Thursday ruled that Australian National Audit Office worker Ruth Cully's dismissal in June last year was harsh and unreasonable and ordered that she be reinstated.

Ms Cully had worked for the office, which audits federal public service agencies on matters of spending and integrity, for more than 20 years when she was dismissed for allegedly failing to perform her duties.

The audit office said Ms Cully took two periods of unauthorised leave, between November 2020 and March 2021, and in April last year, and did not provide a reasonable explanation.

It also said she refused to follow a lawful and reasonable direction to return to work at the agency's Canberra office. Before dismissing her, the audit office found Ms Cully had breached the Australian Public Service code of conduct in failing to return to work at the Canberra office and demoted her in May 2021.

Ms Cully, who was an auditor at the agency working on a part-time basis, told the Fair Work Commission she was unfairly dismissed.

She said in the time she allegedly didn't perform her duties, she was caring for her terminally ill 92-year-old uncle in northern NSW. Ms Cully also told the commission she had her own health issues, supported by medical evidence, and needed to work remotely as she had a higher risk of complications from COVID.

Her employer also repeatedly provided her incorrect advice about her leave entitlements, unreasonably declined valid leave requests and refused to allocate her work to perform from home, Ms Cully told the commission.

Fair Work heard that the Australian National Audit Office in August 2020 granted Ms Cully permission to work remotely in northern NSW where she was caring for her terminally ill uncle.

It revoked this the next month and told her to return to its Canberra office, saying she had exhausted all of her available paid leave.

It also told Ms Cully she had taken extended periods of leave over the previous five years, and that "on face value", these had made it difficult for her to fulfil the requirements of her role at the appropriate standard.

Ms Cully wrote to her employer in September 2020 saying her GP had recommended she work from home until December 31 that year due to her elevated risk of complications from COVID-19.

She also told the agency that if she returned to the Canberra office for a proposed meeting, she would need to self-isolate for at least two weeks before she could return to her uncle.

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Ms Cully said she was shocked by the suggestion that it had been difficult for her to fulfil her role to appropriate standards. She said her accrued leave was a reflection of her 35 years in the public service, and that she was willing to work to meet the audit office's needs or take leave without pay to care for her uncle.

"ANAO's actions appear to be a deliberate and systematic attempt to put additional pressure on me in an already highly stressful situation," she wrote.

Agency official Deborah Rollings wrote back restating the decision to revoke Ms Cully's remote working arrangements.

"Your continued applications for leave and resulting lack of work output has driven a decision to revoke your ongoing approval to work [remotely]," Ms Rollings said.

"You have been provided with ongoing feedback from your previous supervisors over the course of the last few months, which was to result in a performance discussion being planned prior to your annual leave period in August.

"As a result of your continued leave applications, this discussion has not yet gone ahead."

Ms Rollings said there was no audit work at that stage suitable for an employee of Ms Cully's level that could be completed entirely remotely.

The audit office rejected Ms Cully's request for leave in November 2020 to care for her uncle, saying he was not an immediate member of Ms Cully's family, and also denying it on business grounds. Ms Cully's uncle had lived with her since 2016.

The audit office said Ms Cully was absent from work without authorisation between November 18, 2020 and March 17, 2021, except for two days' carers leave.

It gave Ms Cully two directions to work at the Canberra office, including from November 23, 2020, and from March 1, 2021, and said she did not comply with either.

Ms Cully advised the ANAO that she was willing and able to return to work on March 1 but in a remote capacity. She asked her manager to provide her with work, but was told it needed to be performed from the office in Canberra.

Ms Cully returned to the Canberra office on March 17 after she received a notice of intention to terminate her employment for failing to perform her duties.

She applied for long service leave but continued working in the office after this was declined.

While she was in Canberra on April 6, 2021, she was unable to contact her uncle and called emergency services, who broke into her home in northern NSW and found him barely responsive. He was rushed to hospital and died there the next day.

The audit office granted Ms Cully miscellaneous leave without pay for April 6-7. Ms Cully later wrote to the auditor general requesting a review of a decision to refuse her long service leave, and a reinstatement of her remote working arrangements. She said she was making funeral arrangements and requested leave until April 28.

The audit office said Ms Cully took unauthorised leave until April 21 when she returned to the Canberra office. It sanctioned her on May 19, reprimanding and demoting her, and reassigning her duties for failing to comply with its first direction to return to the office.

The audit office sacked Ms Cully on June 2, 2021 saying she had failed to perform her duties.

Fair Work Commission deputy president Lyndall Dean said she was not satisfied that the audit office's directions for Ms Cully to return to its Canberra office were reasonable in the circumstances of the case.

"Ms Cully considered she had an elevated risk of COVID (supported by medical evidence) and had caring responsibilities for her uncle, a member of her household who had, at the latter stages of the events set out above, been sent home in Ms Cully's care to die," Deputy President Dean said.

There was no basis for the audit office to decline leave requests on the basis that Ms Cully's uncle was not an immediate family member, and she was entitled to make a request for flexible working arrangements, the deputy president said.

"I am not satisfied that the ANAO had reasonable business grounds to revoke the flexible working arrangement that had been approved for her through to December 2020, particularly where none of the purported performance issues had been formally raised with her," Deputy President Dean said.

The commission also found that the decision to revoke Ms Cully's remote working arrangements was unreasonable.

"It was Ms Cully's extended periods of leave, which had been approved by the ANAO, that triggered the revocation of her remote working arrangements and led to the events that followed," Deputy President Dean said.

"The taking of leave, accrued after more than 30 years with the Commonwealth public service, was no basis for such revocation.

"Further, at this time, most staff had been working from home from March 2020 and were not required to return to the office until March 2021."

Ms Cully had returned to the agency's Canberra office and had been performing her duties for more than six weeks when she was dismissed, Deputy President Dean said.

"At the time of her dismissal there was no basis for dismissing her for non-performance of duties as she was in fact performing her duties as directed and had already been the subject of a sanction," she said.

The deputy president ordered the audit office to reinstate Ms Cully to the APS6 position she held before her sacking and to pay her wages she missed due to her dismissal.

When asked if it would appeal the Fair Work decision, the audit office on Friday declined to comment on the case.